Land and Environment Court of New South Wales CITATION : North Sydney Council v O'Hara [2001] NSWLEC 286 APPLICANT: North Sydney Council PARTIES : RESPONDENT: Louise O'Hara FILE NUMBER(S) : 40119 of 1999 CORAM: Talbot J KEY ISSUES: Injunctions and Declarations :- variation of final orders. LEGISLATION CITED: CASES CITED: DATES OF HEARING: 27/11/2001 EX TEMPORE JUDGMENT DATE : 11/27/2001 APPLICANT: Ms H Irish (Barrister) SOLICITORS: Mallesons Stephen Jaques LEGAL REPRESENTATIVES: APPLICANT: In Person SOLICITORS: N/A JUDGMENT: IN THE LAND AND Matter No. 40119 of 1999 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 27 November 2001 North Sydney Council Applicant v Louise O'Hara Respondent REASONS FOR JUDGMENT 1. HIS HONOUR: I have listened to the applicant on the notice of motion, the respondent in the proceedings, particularly when she was in the witness box and I have had a very extended opportunity to form an assessment of her demeanour and her integrity. 2. Notwithstanding what I said on the last occasion, when I delivered judgment in her absence, I am not satisfied that Ms O'Hara has reached the point where she realises that the situation can only be resolved in a satisfactory way by the completion of the works through her own efforts and with the assistance of her own contractors and workmen. 3. Mr Raneri has given further evidence. I am satisfied that the preferred option from the point of view of the council is that it not be directed to carry out the work except in a situation of extreme necessity. The preferred option, and I think it is a responsible response by Mr Raneri, should be that Ms O'Hara complete the work. 4. The difficulty that the council has, as explained by Ms Irish, is that there has been ample opportunity for these works to be completed in the past and that the council does not have the confidence that if the time is extended even further that Ms O'Hara will complete the works. 5. The Court is prepared to accept that Ms O'Hara now genuinely believes that she can arrange for the work to be completed by 15 February 2002, as she requests the court to order in her notice of motion. Nevertheless, I do not believe that it is appropriate for the matter to be dealt with other than in a final self-executing manner. I have had regard to the whole of the history from the aspect of both parties, and it is my considered opinion that it is appropriate for orders 7, 10 and 11, made on 18 July 2001, to be varied in the manner foreshadowed by the notice of motion. 6. Accordingly, the dates of 11 October 2001 in order 7, and 25 October 2001 in order 10, are varied to 15 February 2002; and the date in order 11 is varied to 30 March 2002. 7. The question of costs on this notice of motion, having regard to the other orders in relation to costs, are reserved. 8. IRISH: Your Honour, might I just record one matter? 9. HIS HONOUR: Yes. 10. IRISH: Your Honour, you heard from me briefly in relation to submissions and I simply wanted to put on the record that I did not provide a more full response to some of the matters raised in response to the applicant on the motion's submissions for the reason that it didn't seem to be pertinent, however, I don't want that silence to be misconstrued as admissions to any of those matters. 11. HIS HONOUR: Certainly not, Ms Irish. 12. IRISH: And there's an outstanding matter which, and I think your Honour would agree, would be appropriate not to be left undone and that is that Ms O'Hara has a notice of motion of 31 August 2001 before you, which seeks a variation of the orders that you made on 18 July 2001. 13. HIS HONOUR: Which is to the same effect. 14. IRISH: Which is different, and I would suggest is superseded by today, and it should be withdrawn or dismissed. 15. HIS HONOUR: The other order I make then is that otherwise the outstanding notices of motion are dismissed. 16. RESPONDENT: I have a point on outstanding notices of motion. No, I have one there that requests all the documentation from North Sydney Council, your Honour, because they refused to effectively give it to me. 17. HIS HONOUR: That's an evidentiary question. 18. RESPONDENT: And I have a notice to produce for the restaurant. Now hopefully, I won't need to do any more-- 19. HIS HONOUR: No, that has all been subsumed by the orders. 20. RESPONDENT: But I think I have a right to see the council records in my own case in full. 21. HIS HONOUR: I have made final orders in the matter. The subpoenas, everything else has gone by the board, they have been subsumed by the completion of the matter. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.